Restorative Justice - Philosophy, Theory and Practice
Restorative Justice - Philosophy, Theory and Practice
RESTORATIVE JUSTICE:
PHILOSOPHY, THEORY AND
PRACTICE
3.1. INTRODUCTION
43
44 THE SUSTAINABILITY OF RESTORATIVE JUSTICE
security from the justice system. It can be argued that our criminal justice
system
• Excludes the victim from the system
• Is centrally concerned with punishment
This does not produce fairness or invoke empowerment to either the
victim or the offender. Restorative justice operates within the framework of
the law and is overseen by the courts to ensure that the outcome is reason-
able. It allows the victim and the offender to meet face to face and discuss
the harm they have suffered as a result of the offence. It empowers victims
and offenders and provides them with the opportunity to take action to
restore one another to their pre-offence state.
This gives both parties the opportunity to reintegrate into society with
lower rates of stigmatisation for the offender. An important point to note is
that the offender or offenders are made aware at the beginning of the
restorative event that if they fail to co-operate with the proceedings, they
may be subject to a more adversarial response from the courts. The primary
goal of the restorative justice process is not punishment but making good
the harm done by offending for the victim, the community and the offender.
Offenders have to take responsibility for their actions as a precondition to
addressing the harm that they have caused.
Offenders become aware that a crime is committed, not against an abstrac-
tion, but against someone real, a person like themselves and against their
community, who are directly and indirectly affected by what has happened.
Crime and conflict affect relationships between individuals who are left out-
side the court system altogether by conventional justice. Proceed-ings and
arguments of the restorative process are voluntary for all parties. People are
given the opportunity to partake in mediation, or to accept reparation. The
process is always confidential however; outcomes and agreements can be
made public, depending on the authorisation by participants.
of rights and responsibilities between the state and civil society particularly
inspired by neo-liberal assaults on the welfare state, and the increasing
salience given to victims of crime (Crawford & Newburn, 2003).
According to advocates, the revival of restorative justice has been borne
out of a critique of traditional criminal justice (Johnstone, 2002). They
claim that it offers a distinct and unique response to crime that can clearly
be differentiated from retributive and rehabilitative responses (the latter
may show some similarities to restorative concerns but their purpose is
quite different) (Weitekamp, 1999).
According to Walgrave (1994), the retributive response to crime takes
place in a societal context of state power, focuses on the offence, inflicts
harm, seeks just deserts and ignores the victim. The rehabilitative response
to crime takes place in the context of a welfare state, focuses on the offen-
der, provides treatment to him or her, seeks conforming behaviour and also
ignores the victim.
Restorative justice, on the other hand takes place in the societal context
of empowering the victim, focuses on losses, repairs the damage inflicted,
seeks satisfied parties and views the victim as the central person of the whole
process (Hoyle & Young, 2002; Hudson, 2003). It is the most significant
development in criminal justice and criminology over the past two decades
(Bazemore & Schiff, 2005; Crawford & Newburn, 2003; Hudson, 2003).
According to some commentators, restorative justice became the global
social movement for criminal justice reform in the 1990s and into the new
millennium (Braithwaite, 1998). It is most commonly characterised by what
it is an alternative to, and gives new focus to the concept of informal justice
(Braithwaite, 2002; Roche, 2004). Broadly speaking, its goal is to transform
the way in which contemporary societies view and respond to crime and
associated forms of problematic behaviour (Johnstone & Van Ness, 2007).
For example, juvenile justice as alluded to earlier can be regarded as
swinging back and forth during the past century between a justice and a
welfare model, between retribution and rehabilitation (Goldson, 2006;
Muncie, 2002).
Restorative justice is heralded as a long overdue third model or a new
‘lens’ in which to perceive crime (Zehr, 1995) a means of avoiding the
sway and heading more consistently in a new direction, at the same time
enlisting the support of both liberal politicians who advocate the welfare
model and conservative politicians who propose the justice model (Daly,
2002; Braithwaite, 2002).
The appeal of restorative justice to liberals is a less punitive justice
system. The appeal to conservatives is that restorative justice strongly
Restorative Justice: Philosophy, Theory and Practice 47
A process whereby all parties with a stake in a particular offence come together to
resolve collectively how to deal with the aftermath of the offence and its implications
for the future. (1999, p. 18)
• Denunciating crime
• Reforming individual offenders
• Preventing crime
• Helping victim
• Making good the suffering caused by crime
• Keeping the costs of administering justice to a minimum
attending to the needs of the offender who brought about the crime in the
first place.
Restorative justice in very simple terms is another way of dealing with
offenders. Many see it as an alternative to traditional approaches. The
central focus of restorative justice is the harm caused by the offence. The
offender has to redress this balance voluntarily. This is achieved by
acknowledging the harm caused and by righting the wrong by engaging in
reparation. In the current retributive system, crime is considered a violation
against the state. The aim of justice will be to establish guilt and hand out
a punishment. It is an adversarial system with the central component of
punishment. Restorative justice sees crime as a violation on people and
their relationships. The aim of restorative justice, therefore, is to recognise
the harm caused to victims, the community and offenders. It endeavours to
repair the damage caused. The paradigms of criminal justice processes,
restorative justice versus retributive justice put forward by Zehr (1990),
provides an in-depth comparison of what both processes stand for in
simple terms.
used to settle community disputes. One area where this may be possible is
in the area of ethnic disputes and this will examined in later sections of this
chapter.
societies with the lowest crime rates that have the ability to shame criminal
conduct most effectively (Braithwaite in Johnstone, 2003).
He believes that there is an important difference between shaming a
person and stigmatising them.
For Braithwaite, reintegrative shaming prevents crime, while stigmatisa-
tion is a form of shaming which makes crime problems worse. Reintegrative
shaming means disapproving of the wrongness of the act, while at the same
time treating the person who committed the act as essentially a good human
being. Reintegrative shaming in summary relates to a strong disapproval of
the act but conveying and articulating a response that is seen to respect the
offender (Braithwaite, 1989).
Daly (2003), in her article Restorative Justice: The Real Story, addresses
the problem of defining restorative justice. She states that this is not easily
done as it encompasses a variety of practices at different stages of the crim-
inal justice process. She also points out that in most legal issues involving
individual criminal matters, restorative justice practices have only been
applied to those offenders who have admitted to an offence. Therefore, it
deals with the penalty phase of the criminal process for admitted offenders,
not the fact-finding phase. Daly’s work differs greatly from Braithwaite’s
largely due to the fact that she deals with myths of restorative justice and,
furthermore, she uses data obtained from observing conferences to achieve
her objective.
Daly (2000, 2002, 2003, 2005) discovered that participants engaged in
a flexible incorporation of multiple justice aims which included some
elements of retributive justice, censure for past offences, some elements of
rehabilitative justice in the form of asking questions such as what could be
done to encourage future law-abiding behaviour and some elements of
restorative justice, such as how the offender make up for what they had
done to the victim (Daly cited in Johnstone, 2003).
As a result of her findings, Daly was provoked to consider the relation-
ship between restorative and retributive justice and the role of punishment
in restorative justice. She states that because the terms ‘retributive justice’
and ‘restorative justice’ have such strong meanings and are largely used by
advocates as metaphors for the bad and the good justice, perhaps they
should be analysed in a way which explains current and future justice prac-
tices (Daly cited in Johnstone, 2003).
Daly does not concur that the practices of restorative justice, which
are in operation in some jurisdictions are replicas of pre-modern forms
of justice, rather they are new justice practices, which have many bits of
‘old’ in them. By the old justice, Daly refers to modern practices of
Restorative Justice: Philosophy, Theory and Practice 53
In the past, the formal criminal justice system has been overly focused on
what O’Mahony (2001, p. 11) calls, ‘public interest’ which effectively
54 THE SUSTAINABILITY OF RESTORATIVE JUSTICE
It is not a particular practice, but a set of principles, which may guide the general
practice of any agency or group in relation to crime. It seeks to balance the concerns of
the victim and the community with the need to reintegrate the offender into society. It
seeks to assist recovery of the victim and enable all parties with a stake in the justice
process to participate in it. Restorative Justice is not a movement alongside or against
the current criminal justice system but must be seen as a fully integrated approach with
the existing criminal justice system in order to modify the foundations of the system
itself. (Aerston, 1997, p. 14)
Restorative Justice: Philosophy, Theory and Practice 55
For the conference, the prospective facilitator can take comfort and gain
confidence in understanding that Tomkins’ (1962) Affect Theory is reliably
demonstrated by the scripted conference process. Participants consistently
move from negative to positive feelings in the safe and structured environ-
ment created by the script (O’Connell, Wachtel, & Wachtel, 1999).
Nathanson’s (1992) Compass of Shame makes it very clear how people
from diverse backgrounds react to each other and express their shame.
Nathanson argues that people usually react with one or more of four
general patterns or ‘scripts’ which depict as directions on a compass: attack
other, attack self, withdrawal and avoidance. For example, when parents of
their offending children blame and criticise the school or the police officer,
when confronted with an offence, they demonstrate the attack other
response. These parents of offenders try to avoid shame by putting the
responsibility on others. This is the most common response to shame
demonstrated in today’s society. Another contemporary response is avoid-
ance through alcohol, drug abuse or thrill-seeking behaviour such as joy
riding in a stolen car.
However, several decades ago, the common responses to shame were
attack self and withdrawal. In attack self, the shamed individuals are self-
punishing and unreasonably hard on themselves. In withdrawal, the
shamed individuals hide as a result of being overwhelmed by the shame.
These responses to shame are normal; however, they are harmful and need
to be addressed (O’Connell et al., 1999).
Conferences can help people move beyond the compass of shame
through acknowledgement and expression of shame and through subse-
quent reintegration. Due to the fact that the restorative conference affirms
the intrinsic worth of the wrongdoer and condemns only the objectionable
behaviour, parents and offenders feel less threatened and more equipped to
acknowledge responsibility. O’Connell et al. (1999) also argue along with
other theorists such as Braithwaite (1989) and Daly (2003) that victims also
experience shame.
Victims may blame themselves for the incident, withdraw and hide their
feelings and sometimes distract themselves. Victim may also ‘lash out’ at
others close to them who are not responsible for the offence. In providing
an outlet for expressing feelings and moving beyond shame to resolution,
restitution and reintegration, the restorative conference is as important
to victims as it is to offenders (O’Connell et al., 1999). This process paves
the way for improved cultural understandings in place of mistrust and
misunderstandings from poorly informed cultural assumptions.
58 THE SUSTAINABILITY OF RESTORATIVE JUSTICE
The relationship between restorative justice and the wider criminal justice
system remains a central issue in implementing restorative practices
(Braithwaite, 2002; Dignan, 1999). As has been the case in England and
Wales, securing referrals has been an enduring problem and as a conse-
quence, many initiatives have remained on the boundaries of criminal
justice, both in terms of low referrals and the relatively minor nature of the
cases being referred (Miers et al., 2001).
This has often left restorative justice as a marginal, irregular and highly
localised activity (Dignan & Lowey, 2000). It also creates a situation
where programmes are reliant upon other criminal justice organisations
such as the police, prosecution service, courts or probation and the prison
service for appropriate referrals. Very often, these organisations may not
share a restorative justice philosophy; make have different priorities or
simply may not have a sufficient framework in place for such programmes
to work. The referral problem raises further difficulties for evaluation on
the effectiveness of restorative interventions as it introduces elements of
bias and self-selection (Crawford & Newburn, 2003; Hoyle & Young,
2002).
There is also the issue that programmes, which rely on voluntary choice
by offenders, will run the risk that those who choose to partake are those
who are most likely not to re-offend. A common experience of restorative
justice is that the criminal justice system presents structural, organisational
and cultural barriers to its implementation (Walgrave, 2002).
This issue is particularly relevant in the Irish case as at present there are
a number of structural, organisational and cultural barriers affecting the
successful implementation of the Children Act 2001 and restorative justice
provisions (Kilkelly, 2006a, 2007, 2008; Seymour, 2004; Walsh, 2005). This
is a key concern of the book and will be examined later, in detail, by the
primary analysis.
There is much debate regarding the merits of different models of restora-
tive justice. However, an understanding of the relationships between the
implementation of different models and the mechanics of the societies into
which they are being located is rather limited (Maxwell & Morris, 2002).
As a consequence of the experiences of restorative justice in other coun-
tries, the debate surrounding restorative values and principles is a contested
area with many commentators arguing for and against certain standards
and ethics (Restorative Justice Consortium, 1999).
Restorative Justice: Philosophy, Theory and Practice 59
Walgrave (2002) argues that for restorative justice to realise its full
potential it needs to transcend the focus on small crimes, juvenile and first
time offenders, to actualise its potential fully, a maximinalist version of
restorative justice must be developed, with the aim of providing restorative
outcomes to a maximum number of crimes in a maximum number of possible
situations and contexts, including those whose voluntary agreements are not
possible and coercion is needed (p. 34).
Hoyle and Young (2002) state that it is crucial, if restorative justice is to
fulfil its potential, that its virtues are not exaggerated and that the pitfalls
are not ignored. They argue that the greatest tension in restorative justice is
to be found in the question of whether it should or should not be integrated
into the mainstream state justice system, and if this is the case, to what
extent. Some such as Marshall (1999) make the case that restorative justice
programmes should be kept separate from mainstream criminal justice
because their aims and values are different.
Others, including Walgrave (1997, 2002), argue that restorative justice
should be an integral part of criminal justice. Any attempts to separate
restorative justice from the state is considered to be risky business as it
involves rejecting due process protections and other checks and balances
that accompany state-administered justice (Roche, 2004).
Both critics and advocates of restorative justice have equally expressed
concern regarding the limited scope for protecting the rights of defendants
in restorative processes (Kilkelly, 2007; Van Ness, 1999). Braithwaite has
also highlighted the point that restorative practices can trample rights
because of impoverished articulation of procedural safeguards (1999, p. 101).
According to Hoyle and Young (2002, p. 540) few would argue ‘that there
is no legitimate role for the state in restorative justice’.
What is of concern within the context of restorative processes and main-
stream criminal justice, however, are issues surrounding the facilitation of
conferences, legal advice, proportionality and the influence of state agendas
in restorative justice (Ball, 1999, 2004; Fionda, 1999; Gray, 2005; Jantzi,
2004; Roche, 2004).
In terms of who should facilitate conferences, there is concern, particu-
larly in the case of those led by the police, that it puts too much power into
their hands. The fear is that officers will investigate, arrest, judge, and pun-
ish someone without there being sufficient legal safeguards in place against
the abuse of power (Ashworth, 2001; Kilkelly, 2007). This has further impli-
cations in that the police play contradictory roles; insofar as it creates con-
flict between police and some young people, with the most obvious result
that the police will not be considered neutral facilitators (White, 1994).
60 THE SUSTAINABILITY OF RESTORATIVE JUSTICE
remain outside the rule of law. In England and Wales and similarly in the
Republic of Ireland, there is no requirement for young people who are
offered a warning or reprimand to have access to legal advice (Crawford &
Newburn, 2002; Kilkelly, 2006b, 2007; O’Dwyer, 2006). Similarly,
offenders who are given referral orders by the courts will rarely be legally
represented with youth offender panels (Gelsthorpe & Morris, 2002).
Furthermore, support for offenders having legal representation during a
conference or other restorative process has been met with hostility (Fionda,
1999).
Ball (1999) in her article on the Crime and Disorder Act 1998 and the
Youth Justice and Criminal Evidence Act 1999 argues that the legislation is
not in compliance with the European Convention on Human Rights in
terms of supplying a lawyer at each stage of the criminal justice process,
with free legal assistance where necessary. Once again, there are links with
the Republic of Ireland as Kilkelly (2006a) argues that these concerns did
result in a change in attitude by youth-offending teams in terms of allowing
legal representatives to attend panel meetings. However, as Crawford and
Newburn (2002) argue, there is no legal aid available for panels so this
change has little impact in practice.
In addition to concerns regarding the facilitation of conferences and the
availability of legal representation, the issue of offender reparation arrange-
ments can have a disproportionate effect on restorative justice processes
(Hudson, 2003).
Just desert theories are concerned that the influence of victims or the
wider community could result in disproportionate reparation agreements
(Crawford & Newburn, 2003). For these theorists, it is important that the
punishment should always be proportionate to the offence, bearing in mind
the seriousness of the harm and responsibility (Von Hirsch, 1993).
Fears over such agreements might be ignored if restorative justice was
being used only for diverting minor cases from court, but the fact that
reparation is part of a referral order, the nature of it as a form sentencing
cannot be ignored (Hoyle & Young, 2002). Cavadino and Dignan (1998,
p. 351), as advocates of restorative justice, recognise the need for these
considerations to be taken into account when responding to an offence: the
protection of human rights of potential victims via crime reduction gives us
the ‘general justification’ for having a system of punishment; while the desir-
ability of conveying correct moral messages about relative wrongfulness of
different actions that affect human rights argues for a general principle
of proportionality in the amount of punishment imposed on individual
offenders’.
62 THE SUSTAINABILITY OF RESTORATIVE JUSTICE
However, they argue that proportionality does not need to be rigid and
can give way at times to other aims such as restoration of the victim. This
model allows for reparation agreement to be of a material and symbolic
nature and allows victims to play a role in the decision-making process
regarding reparation (Cavadino & Dignan, 1998). Morris and Maxwell
(2002) argue that proportionality may be better thought of as a form of
bounding mechanism that limits the scope of restorative outcomes through
maximum or upper limits.
However, others, such as Braithwaite and Petit (1990), hold the view
that restorative justice and proportionality are incompatible and they have
explicitly developed theories of reintegrative shaming and restorative justice
in opposition to the just deserts model. According to Hoyle and Young
(2002) and Crawford and Newburn (2003), restorative justice cannot be
judged by levels of proportionality alone but rather reflect core values of
restorative justice including mutual respect and empowerment. Offenders
should not be asked to take part in acts as part of reparation agreements
that degrade or cause stigma to them. The infamous example from
Canberra restorative conferencing of participants agreeing to wear a t-shirt
printed ‘I am a thief’ contradicts the fundamental principle and values of
restorative justice (Newburn, 2007).
The enabling role of the state, in which it provides legal frameworks for
restorative justice alternatives and structures to transfer a certain level of
responsibility to communities for addressing wrongdoing, constitutes one
of the most significant roles for restorative justice (Jantzi, 2004). The
state operates in a number of capacities including resourcer, implementer,
guarantor of quality practice and often time as offending party. The incor-
poration of restorative justice as part of mainstream criminal justice
attracts concerns about state control and the limited nature of community
involvement (Dignan, 2000).
There is nothing wrong with the state shaping the agenda of restorative
justice but in the context of local and individualised justice, the process
must be safe and accountable to protect the rights of all participants
(Hoyle & Young, 2002).
The issue of accountability is of particular significance in any process
that claims to change behaviour and to facilitate agreements between peo-
ple who in ordinary circumstances may not get on (Cook, 2006; Roche,
2004). In the context of the Republic of Ireland, the research findings later
in the book will specifically inform the debate and issues surrounding levels
of accountability within restorative justice programmes.
Restorative Justice: Philosophy, Theory and Practice 63
(Ball, 1999; Brown, 2005; Dignan, 1999; Fionda, 1999; Gelsthorpe & Morris,
2002). However, many would argue that it is better for restorative justice
advocates to seek to engage with and transform certain aspects of established
criminal justice, at least in the short term than to insist on an indepen-
dent and marginalised setting for restorative interventions (Crawford &
Newburn, 2003; Hoyle & Young, 2002; Hudson, 2003; Jantzi, 2004).
A number of difficulties at both the practical and theoretical level were
highlighted in reconciling tensions between models. However, it is argued
that the inherent differences and potential difficulties do not prevent them
from being reconciled. In short, it is contended that restorative justice and
criminal justice, while they may be competing paradigms, they are not as
some commentators suggest irreconcilable (von Hirsch, 2003; Walgrave,
2002; Zehr & Toews, 2004).
It is acknowledged, however, that given the level of conflict and debate
further integration of restorative forms of justice is far from being without
difficulties and complexities. If restorative justice is to be meaningful
and effective, there are a number of tensions that need to be resolved. As
Hudson (2003) has argued the key to reconciling the problems and possibi-
lities of restorative justice lies in creative consideration of its relationship to
formal law.
Problems of how to deal with recalcitrant offenders; how to ensure that restorative pro-
cedures are not seen as second class justice; how to balance expressive and instrumental
functions of justice; and above all, how to ensure that the voice of any party does not
become submerged in an emergent unitary consensus all turn on the relationship
between discursive processes of restorative approaches and role of formal law in mod-
ern societies in relation to defining relationships and allocating rights. (Hudson, 1998,
pp. 255 256).
Furthermore, this combined with the three key stages outlined by Van
Ness and Strong (1997/2002) of encounter, reparation and reintegration will
give focus and strength to the empirical research findings presented later in
the book on the emergence of restorative justice in the Republic of Ireland.
This chapter begins with an overview of restorative justice. It set out the
definitions and principles of restorative justice. It discussed the myths and
realities of restorative justice from the perspective of Braithwaite and
Daly. The chapter further developed understanding of restorative justice by
introducing a practitioner’s perspective and using this to further critique
Braithwaite’s theory of Reintegrative shaming. This was achieved by
applying Tomkins’ Affect Theory and Nathanson’s Compass of Shame to
Braithwaite’s own understanding of Braithwaite’s Reintegrative shaming.
By critiquing Braithwaite’s understanding of Reintegrative shaming
through the practitioner’s perspective, the chapter provided a fuller under-
standing of the potential for restorative justice to provide a meaningful
framework of mediation in policy and practice.
NOTES